Flanders, Justice. The defendant, Danny L.
Brown, appeals from a judgment convicting him on three counts of
first-degree sexual assault and three counts of first-degree child
molestation sexual assault. The trial justice sentenced him to serve
concurrent terms of forty years for each count, with twenty years
suspended and twenty years of probation to commence upon his release
from incarceration. Because we conclude that none of the Superior
Court's challenged rulings constitute error or entitle the
defendant to a new trial, we deny and dismiss this appeal for the
reasons discussed below.

Facts and Travel

A grand jury indicted defendant for sexually molesting Emily
Doe,1 his stepdaughter (Emily or complainant). The
alleged molestation occurred over an approximately two-and-a-half-year
period during which Emily was between the ages of eight and ten years
old.

On November 30, 1994, after a three-day trial in Superior Court, a
jury returned guilty verdicts on all counts. Judgment entered on the
verdict and in December 1994 the trial justice denied defendant's
motion for a new trial Sentence was duly imposed on February 14,
1995.

The defendant raised six issues on appeal that he claimed warranted
reversal of the Superior Court's judgment. His appeal culminated
in a per curiam opinion issued on March 5, 1997,
wherein a four-justice panel of this court dismissed defendant's
appeal on two of the issues he raised while also indicating that the
panel was evenly divided on the remaining four claims of error.
Accordingly, the trial court's judgment was affirmed.
State v. Brown, 690 A.2d 1336 (R.I. 1997). The
defendant immediately moved to reargue his appeal upon the availability
of a fifth justice. We granted this request for the limited purpose of
reexamining only the four issues that had originally ended in an evenly
divided court.

At trial the complainant testified that defendant's sexually
abusive conduct toward her commenced during the summer of 1983, just
after defendant moved in with her mother, Judy Doe (mother or Doe),
Emily, and her sister at the mother's home in West Warwick.
According to Emily, defendant initially began to abuse her by fondling
her breasts and her vaginal area, but this activity soon escalated to
oral sex and finally to intercourse. The defendant's sexual abuse
of Emily continued for over two years until November 1985, just before
defendant married the complainants mother, and it typically occurred
when the mother was at work or out shopping or when her sister was
outside playing, in her room sleeping, or with her mother. Emily
testified that the sexual abuse occurred on a regular basis throughout
this period.

Emily made no mention of the alleged abuse at the time of its
occurrence. The defendant had told her "not to tell anybody. It
was our secret." However, in 1989, four years after the assaults
ceased, Emily and her mother were watching a television talk show (the
"Oprah Winfrey Show") on the subject of the sexual abuse of
children. Emily exclaimed to her mother that "that happened to
me" and subsequently ran out of the room, too "scared"
to discuss the matter further. She did not name a perpetrator.
Emily's mother testified at trial that when she later confronted
defendant with Emily's cryptic exclamation, he denied any
knowledge thereof. On cross-examination, however, Emily's mother
admitted that in her written witness statement to police she had
asserted that defendant had told her that the child had touched him
sexually.

Doe and defendant divorced in March 1989. Their marital dissolution
was short-lived, however, and after a reconciliation of sorts the couple
remarried in June 1991.2 By the fall of 1991 the
Brown family had become regular parishioners of the Living Waters
Foursquare Gospel Church in Smith field. The church's pastor,
Elizabeth Janikuak (pastor or Janikuak), who had also officiated at the
Browns' second marriage ceremony, began noticing that Emily was
"mainfest[ing] some real angry behavior." Janikuak called
Emily into her office because she "wanted to help her." She
assured Emily that she was available to talk about any problems she was
experiencing and told her to "call me when she was ready to talk
* * * because I wasn't going to force her to talk if
she didn't want to." Several days later Janikuak received a
call from Emily, and they arranged a meeting on October 24, 1991,
wherein Emily revealed to Janikuak her history of having been sexually
abused by defendant.

After her meeting with Emily, Janikuak attempted to take immediate
control of the situation. She contacted defendant and asked him to come
to the church to discuss a "very serious matter."
Thereafter, she informed him of Emily's accusations, and defendant
denied them. However, he told her that on one occasion several years
earlier Emily had approached him while he was asleep on the living-room
couch, reached into his underwear, and fondled his penis. The defendant
reiterated this version of events at trial. He explained that at first
he believed that it was his wife waking him up but that when he realized
it was his stepdaughter's hand in his pants, he scolded her.
According to defendant, he informed Doe of this incident shortly after
its alleged occurrence, but nothing more was said about it specifically.
The mother's recollection contrasted starkly with that of
defendant; she testified that defendant never related any such incident
to her at that time.

Janikuak subsequently suggested that the Browns seek counseling with
Richard Tanguay, M.D. (Dr. Tanguay), a Christian psychiatrist and former
pastor located in Wilmington, Connecticut, who had greater experience in
counseling than she did. Doctor Tanguay testified that Janikuak had
previously referred other persons to him for similar purposes. On
December 12 1991, defendant and Doe traveled to Connecticut to meet with
Dr. Tanguay, and there they defendant's reaction "was one of
admission, yes, something of a sexual nature did occur between himself
and [Emily]" but that defendant was "minimizing" what
had happened. Doe testified at trial that at that counseling session Dr.
Tanguay asked defendant, "Was there, you know, abuse?" and
defendant responded affirmatively, "Two to three times in a
month."

Emily still had yet to confide fully in any family member concerning
what had happened to her. According to complainant's mother, it
was not until April 7, 1992, in the presence of Janikuak, that Emily
finally divulged to her mother the extent to which defendant had abused
her. On April 30, 1992, Doe reported the information to the police.
Thereafter, in June of 1992 formal criminal proceedings began.

On reargument defendant reasserts the four alleged trial errors over
which this court was previously deadlocked. He contends that various
rulings by the trial justice, to which we now turn, violated his
confrontation rights under the United States
Constitution 3 and the Rhode Island
Constitution 4.

Analysis

I

The Denial of defendant's Pretrial Motion to Compel the State
to Produce the Names and Addresses of Physicians Who May Have Treated or
Examined Complainant

The defendant's first claim of error arises from a pretrial
hearing on defendant's motion to compel the state to produce the
names and addresses of "any and all pediatricians or medical
doctors from whom [complainant] may have received treatment or been
examined from the period May of 1983 through January of 1987." We
believe that the hearing justice was correct in provisionally denying
– one year before the trial began - - such an overbroad and
unripe request for the production of trial witness impeachment material.
In any event, because the requested confrontation-clause information was
not discoverable as a matter of right before trial, defendant was
required to seek this information at the time of trial. However, he
neglected to do so, and thereby failed to preserve this issue for
review.

A. The Defendant Was Not Entitled to Obtain the
Requested Information during the Pretrial Discovery Phase of this
Prosecution

The defendant's counsel told the Superior Court justice
presiding at the November 8, 1993 pretrial hearing that his motion to
compel was filed under Rule 16 of the Superior Court Rules of Criminal
Procedure. However, as applied to complainant, Rule 16 does not require
the state to produce such information as part of pretrial discovery.
Other than prior recorded statements or a summary of the witness's
expected trial testimony, under Rule 16 "the only records the
state is required to produce [pertaining to a prospective prosecution
witness] are those regarding prior convictions."
State v. Kelly, 554 A.2d 632, 635 (R.I. 1989)
(holding that Rule 16 does not require the state to produce records of
the then Department of Children and Their Families pertaining to a
prospective prosecution witness).

Although the court in Kelly went on to hold
that the defendant there did have the right to require the statute to
produce the requested records at trial under the confrontation clauses
of the State and the Federal constitutions, it did so not as a matter of
pretrial discovery but in the context of what information must be
provided to the defendant at trial to enable him to conduct an effective
cross-examination of prosecution witnesses. Thus in
Kelly we noted that "the right of
confrontation is a trial right, raising itself only when
a defendant is improperly denied the ability to confront and to
effectively cross-examine an adverse witness at trial."
Id. at 635. (Emphasis added.) And it arises only
"when the types of questions the defense counsel may ask during
cross-examination are improperly restricted."
Id. Here defendant was never improperly denied the
ability to confront and to effectively cross-examine any adverse
witnesses witness against him. Nor were the types of questions that he
might wish to ask of any witness improperly restricted. Indeed, the
trial justice was never made aware of defendant's desire to obtain
the names of all physicians who may have examined complainant for the
period requested, and defendant failed to question any witness about
such information. Thus, unlike the circumstances in Kelly, this was not
a case in which a defendant's right to cross-examine and to
confront the witness against him was impermissibly restricted by the
trial justice. Rather, because defendant failed to raise this issue at
trial, the trial justice was left totally in the dark on this point and
had no reason even to suspect that defendant still desired such
information, let alone that he would like the court to compel the state
to produce it for his review and use at trial.

In our opinion defendant's request to obtain from the state the
names of all physicians who may have treated or examined complainant for
a four-and-a-half-year period, coming as it did a year or so before the
trial began, was deciedly premature, a fact reflected in the hearing
justice's denial of the motion "at this
point." 5 If defendant or his counsel
had truly desired such information for use at trial before or during
cross-examination, it was incumbent on defendant to raise this issue
with the trial justice.6 Although the request, as
framed, was improperly overbroad in any event (see below), if defendant
had asked the trial justice to require the state to produce any medical
records in its possession, custody, or control that would show the
results of any vaginal examinations of complainant during the relevant
period, the trial justice could have considered whether to require the
state to produce any such material so that he could conduct an in-camera
inspection for impeachment fodder. See State v.
Kholi, 672 A.2d 429, 437 (R.I. 1996) (endorsing use of in-camera
inspection of a complainant's psychotherapy records in a
sexual-abuse case). Having failed to make any such request of the trial
justice, defendant should not now be heard to raise this issue for the
first time on appeal.

Even if defendant had properly raised this issue at trial (which he
failed to do) and even if the trial justice had prevented defendant from
properly confronting the witnesses against him at trial (which did not
happen), the proper remedy here would not be to grant a new trial but to
remand this case to the trial justice and direct him to ascertain
whether there are or were any such vaginal-examination records in
existence and, if so, to determine in camera if the "records would
create a basis for an attack on [the] witness's
credibility." Kelly, 554 A.2d at 636;
see also Kholi, 672 A.2d at 437. If either one of
these questions was answered in the negative, then the alleged error in
failing to compel the state to provide this information would be
conclusively shown to have been harmless and no new trial would need be
granted. Indeed, because defendant made no attempt whatsoever at trial
to cross-examine any witness on this issue, to obtain access to the
records in question, or to request the trial justice to conduct an
in-camera inspection of same, we have no idea that any such records have
ever existed, much less that they contain any "basis for an attack
on the witness's credibility." Kelly,
554 A.2d at 636.

Moreover, although defendant could have utilized Super.R.Crim.P.
17(c) 7 well in advance of any trial, he
failed to do so. Pursuant to Rule 17(c), defendant could have requested
the court to authorize a subpoena to be served upon Emily and/or her
mother (or for that matter upon any of the psychiatric personnel
identified in the discovery materials produced in response to the courts
order for the state to provide the defense with such information)
requiring them to produce for the court's in-camera review (and
for defense counsel's possible later inspection) any documents
(such as doctors' bills, prescriptions, diagnoses, and the like)
showing the names of any physicians who might have gynecologically
examined or treated Emily during the relevant period. Relying upon an
examination of any such records, defendant may have been able to learn
the names and addresses of such physicians whose relevant records in
turn could have been similarly subpoenaed before trial.

Finally, although every defense lawyer would prefer to maximize the
time available to him or her in advance of trial to obtain, to review,
and to analyze relevant factual information for possible later use at
trial, it goes too far to state that any such information that is not
obtained or obtainable until the trial itself is "useless"
to a criminal defendant. In such situations we are confident that trial
justices can safeguard the defendant's constitutional rights by
allowing defendants and their attorneys whatever reasonable time and
leeway is needed during the trial itself to evaluate any information
that was not reasonably obtainable by them before trial. Indeed, this is
precisely the protocol this court endorsed in the above-referenced
Kholi and Kelly decisions,
and we discern no reason why it cannot work equally well in this
context. After all, the pertinent medical information at issue here
- - whether complainant had undergone any gynecological examinations
during the relevant period and, if so, the results of any such
examinations vis-a-vis any indications of sexual activity or abuse
- - would not appear to be so arcane or technical as to be useless
to a cross-examiner if it is produced at or during the trial itself. And
any such difficulties that might arise in evaluating such information
for its potential trial use, we believe, can be handled by a reasonable
continuance of the proceedings to allow the defendant to make full use
of whatever information contained therein might be relevant to the
defense.

Further, we do not believe that the prosecution possesses any special
affirmative obligation to assist defendant in his investigation of
information sought pursuant to his confrontation-clause rights when such
information has not been suppressed by the state and when that
information is not otherwise in the state's possession, custody,
or control. Cf.State v. Wyche,
518 A.2d 907, 909 (R.I. 1986) (citing California
v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528,
81 L.Ed.2d 413 (1984)) ("Nor is the prosecution responsible
for delivery of information outside [its] custody and control");
State v. Beaumier, 480 A.2d 1367, 1371 (R.I.
1984), abrogated on unrelated grounds, State v. Rios,
702 A.2d 889 (R.I. 1997) (no Brady
violation emanating from "surprise at trial" because
defense failed to use already-provided discovery for its own further
investigatory purposes); State v. Pemental, 434
A.2d 932, 936 (R.I. 1981) (no due-process violation absent suppression
of evidence by the state where defendant's allegation was that the
state failed to pursue a certain mode of investigation).

Thus in our judgment the motion justice was entirely correct in
denying "at this point" - - a year
before trial - - defendant's request for the state to identify
all physicians who treated complainant when she was between seven and
eleven-and-a-half years old. The request was untimely, was not a proper
subject for pretrial discovery, was waived when defendant failed to
present it to the trial justice, and was overbroad in any event (see
below).

B. The Request Was Overbroad in Regard to the Period
Covered and the Type ofInformation
Requested

The core confrontation-clause reason for defendant's desire to
obtain access to complainant's medical records was to ascertain if
she had undergone any vaginal examination by a physician during (or
immediately after) the period of the alleged sexual abuse by defendant
and, if so, whether any such examination revealed any physical signs of
the alleged sexual abuse.

However, the request for the names and addresses of all physicians
who examined or treated complainant for anything and everything over a
four-and-a-half-year period - - including any colds, flus, stomach
aches, fevers, whooping cough, measles, or any of the other long litany
of childhood afflictions unrelated to sexual abuse - - was grossly
overbroad in regard both to the period covered (a period that included
fourteen months after the alleged abuse stopped) and as to the types of
medical treatments and examinations requested. Moreover, because the
information sought by defendant about complainant was privileged and
confidential health-care information,8 the Superior
Court would have been entirely justified in strictly limiting defendant
to only that medical information concerning complainant that was needed
for confrontation-clause purposes.

Moreover, wholly apart from the privileged and confidential nature of
the information sought, a hearing justice should not have to grant a
defendant's informational demands for bushels of chaff if there is
any possibility that such a request might turn up a few
confrontation-clause kernels at the bottom of the discovery barrel. Nor
should the hearing justice have to give defendant a blue pencil, take
him by the hand, and then guide him through a redraft of such
blunderbuss requests.

Thus even if defendant's discovery request for the names of
complainant's examining physicians had been ripe, even if it had
been allowable discovery under Rule 16, even if it had been limited to a
more appropriate period, and even if it had been presented to the trial
justice instead of merely to a hearing justice a year before the trial,
it should have been denied because of the manifest overbreadth in the
medical information requested.9 For all these
reasons we conclude that the Superior Court did not err in refusing to
grant defendant's pretrial motion to compel the state to produce
as part of its pretrial discovery the names of all examining and
treating physicians for one of the prosecution's witnesses.

C. The Adverse Future Consequences of a Contrary
Holding

We also seek to avoid the foreseeable legacy of a contrary ruling on
this issue. If we were to reverse and rule that the heating justice
should have granted the motion to compel, such a holding would not stop
at endorsing the submission of unjustified, overbroad, and unripe
requests for confrontation-clause grist when, as here, they have been
improperly propounded one year before thai pursuant to Rule 16
discovery. It would also give other defendants every reason to frame and
submit such overbroad requests in the hope that, as here, they will be
denied well in advance of trial. If so, these defendants and their
counsel could then relax and rest assured that they have thereby
preserved a surefire issue for appellate review and eventual reversal if
any later verdict comes in against them at trial. The fact that they
failed to raise this issue with the trial justice would not be held
against them on appeal - - or so they would argue - - because,
after all, this court does not require bulldog-like tenacity from
defendants.

However, we usually do require something more than potted-plant-like
passivity for defendants to preserve alleged trial errors for review.
What is even worse, however, is that such a ruling would open the door
for the type of potential discovery sandbagging described above, an
insidious practice that should not be rewarded in this manner.

II

The Trial Justice's Limitation of a Prosecution Witness's
Bias Cross-Examination

The defendant's next claim of error focuses upon the trial
justice's limitation of a prosecution witness's
cross-examination concerning a lawsuit filed against her by one of
defendant's cousins. We conclude that this ruling on the scope of
Janikuak's cross-examination fell within the trial justice's
broad discretion to limit and control the questioning on such a
collateral matter, and in any event was harmless if it constituted an
error. The mere fact that the pastor and her church had been sued by an
alleged cousin of unknown relational proximity or affinity to defendant
for moneys allegedly due on a church construction project does not
constitutionally compel a bias cross-examination concerning this
collateral subject on pain of reversible error if the same is
restricted.

We agree that a criminal defendant is constitutionally guaranteed the
right to an effective cross-examination of the prosecution's
witnesses. State v. Doctor, 690 A.2d 321, 327
(R.I. 1997); State v. Anthony, 422 A.2d 921,
923-24 (R.I. 1980). However, the scope of cross-examination is subject
to limitation by the trial justice's exercise of his or her sound
discretion. State v. Bowden, 473 A.2d 275, 279
(R.I. 1984). And a trial justice may exercise this discretion to narrow
the questioning as long as he or she does not "unduly
restrict" a defendant's cross-examination right.
Anthony, 422 A.2d at 924 (citing
Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105,
1110, 39 L.Ed.2d 347, 353-54 (1974)) (noting that the cross-examiner
should be given reasonable latitude, including the chance to establish
or to reveal bias as it relates to the particular case being tried).
Thus, after there has been sufficient cross-examination to satisfy a
defendant's constitutional confrontation fights, the trial justice
possesses the discretion to limit further cross-examination.
State v. Brennan, 527 A.2d 654, 657 (R.I. 1987).
We shall not disturb such a limitation absent a clear abuse of
discretion "and then only when such abuse constitutes prejudicial
error." Anthony, 422 A.2d at 924. Here we
conclude that the trial justice's minor restriction on
defendant's bias inquiry was neither a clear abuse of discretion
nor a prejudicial error necessitating a new trial altogether.

Our review of defendant's proposed line-of-bias inquiry and his
subsequent offer of proof at trial reveals that the trial justice did
not clearly abuse his discretion in restricting defendant's
cross-examination of Janikuak on this point. First, there was no showing
whatsoever that the pastor knew that defendant was related to a
contractor named Brown or that defendant "was instrumental in
putting the people together to build that church." Indeed,
according to Janikuak's testimony, she did not even know that a
man named Brown had been a contractor who helped to build the
church.10

Second, defendant's subsequent offer of proof was wholly
inadequate to indicate that allowing additional cross-examination would
have developed probative evidence of bias. See
Doctor, 690 A.2d at 327-28 (no abuse of discretion in limiting
bias cross-examination when witness testified to a lack of knowledge
about the subject matter of the alleged bias and the defendant failed to
indicate what he might develop if he was allowed to continue his
cross-examination). Thus we believe that the trial justice did not err
because "a fishing expedition on cross-examination may properly be
brought to a halt when it becomes obvious that the pond is devoid of
fish." Id. at 328 (quoting
Brennan, 527 A.2d at 657). When Janikuak answered
defense counsel's inquiry in the negative about not knowing any
man named Brown who had allegedly been involved in building the church,
the trial justice was entitled to conclude that "the pond is
devoid of fish" - - or at least any worth keeping - - and
defense counsel was obliged "either [to] tell the court where he
believed the fish were hiding or to pack up his fishing gear and try
elsewhere." Id. at 328.

The defendant cites to a Connecticut intermediate appellate court
case, State v. Privitera, 476 A.2d 605, 607 (Conn.
App. 1984), for the proposition that the "pendency of civil
litigation between a witness and a party against whom he testifies is
relevant to bias." We agree that bias may be inferred in
circumstances in which, for example, there is litigation between a
prosecution witness and the defendant in that case. However, when as
here that litigation is not between a prosecution witness and a
defendant but between a prosecution witness and some nonimmediate
relation of a defendant involving a matter entirely unrelated to the
underlying proceedings, we deem such evidence of alleged bias - -
especially in light of defense counsel's limited proffer of
evidence on the subject - - to be too remote to mandate further
cross-examination on pain of per se reversal if it is
restricted.11

Even if we were to conclude that the thai justice committed a clear
abuse of discretion by violating defendant's constitutional rights
to an effective cross-examination under the Federal and the Rhode Island
Constitutions, we believe that there has been no prejudice shown here
that would necessitate a new trial. Rather in light of the distinctions
between the bias circumstances here and those in
Davis, the case at bar would not fit the mold for
application of the Davis court's per se
error role as it was adopted by this court in State v.
DeBarros, 441 A.2d 549, 552 (R.I. 1982).

Moreover, we conclude that any error here was harmless beyond a
reasonable doubt for purposes of the Federal Constitution,
see Delaware v. Van Arsdall, 475 U.S. 673, 680,
106 S.Ct. 1431, 1436, 89 L.Ed.2d 674, 684 (1986), and of the Rhode
Island Constitution, see State v. Squiltante, 622
A.2d 474, 480 (R.I. 1993), because there was other compelling evidence
of defendant's guilt besides the evidence contributed by the
pastor. Most tellingly, defendant admitted at trial that his
stepdaughter had touched him sexually. Even more damning were
defendant's admissions to Dr. Tanguay, in the presence of
complainant's mother. At trial the mother testified that defendant
told Dr. Tanguay in her presence that he had touched the girl
"[t]wo to three times in a month" when Dr. Tanguay pointedly
asked him whether there had ever been any sexual abuse. Indeed,
defendant conceded on the witness stand that he had been referred to Dr.
Tanguay for counseling "because of what happened between me and
[Emily]." Moreover, Dr. Tanguay testified that defendant admitted
to him that "something of a sexual nature did occur." Even
though Dr. Tanguay acknowledged that he could not be very specific in
the details of his counseling session with the mother and defendant, he
also "was very clear in [his] mind that sexual abuse had taken
place, and of a more serious nature than [he] had been led to believe in
the beginning." There was no suggestion that Dr. Tanguay had any
reason to lie, and his testimony was corroborated not only by
complainant and complainant's mother but by Janikuak as well.
Unless all these people were liars and unless defendant himself was
lying when he made the admissions about the sexual touching that had
occurred, then the trial justice's minor restriction of
Janikuak's cross-examination - - if error it was - - was
harmless beyond a reasonable doubt.

In any event, defendant was able to testify about Janikuak's
alleged bias when he stated that she "told me that she hated me,
* * * because I introduced her to my cousin, Hollis Brown,
and there's a lot of bickering still going on, and a lot of
lawsuits." He also testified about there being "a lot of
feuds coming out between my cousin, Al Brown, and Pastor Janikuak, and a
lot of the contractors." Thus there was evidence in the record of
the pastor's alleged bias toward defendant and/or
defendant's cousin, and it does not appear to us that he was in
any way materially prejudiced by the relatively minor limitation of the
cross-examination on this point.

Finally, defendant also testified to the fact that Janikuak married
defendant and his wife some seven or eight months after his
cousin's backhoe work at the church had been completed and three
months or so after the cousin's notice of intent to claim a lien
had been sent to the pastor's church and to the pastor at her
Johnston address. Thus it is hard to fathom the materiality of a
proposed cross-examination for the purpose of showing the pastor's
alleged bias toward defendant when he remained actively involved in the
pastor's church and their relationship continued on such
apparently good terms that she agreed to and in fact performed his
wedding ceremony during the same period in which she was supposed to
have been biased against him because a cousin of his was suing the
church for nonpayment of a relatively small sum ($3,500) on a
church-repair job.

III

The Restriction of the Cross-Examination of Complainant's
Mother on her Failure to Notify DCYF of the Abuse Allegations

During cross-examination of complainant's mother at trial, the
trial justice precluded defense counsel's inquiries into (1)
whether and when the mother first notified the Department of Children,
Youth, and Families (DCYF) about her daughter's April 7, 1992
disclosures of sexual abuse and (2) whether the mother realized that she
had a statutory obligation to notify DCYF of this abuse under G.L. 1956
§40-11-3. Defense counsel's purported reasoning for this line
of inquiry was that the mother's action (or inaction) with respect
to DCYF notification would have reflected adversely on her credibility
as a witness. According to defendant, because the mother apparently did
not make such a notification, she must not have believed
complainant's allegations to be true or else she would have
notified DCYF to protect her two other children from
defendant.12 Moreover, in a
manner consistent with defendant's theory that complainant's
allegations were fabrications made at her mother's instigation
because he was divorcing her mother for another woman, defendant further
contends (for the first time on appeal) that the mother's failure
to report the alleged abuse to DCYF despite an awareness of her legal
obligation to do so would cast doubt on her assertion that her
daughter's allegations had been made before defendant had told the
mother he wanted a divorce. However, because defendant failed to make
this argument to the trial justice, we hold that he cannot now argue it
to this court for the first time on appeal.

But even if defendant had made a timely objection on the grounds now
proffered, we conclude that the trial court did not violate
defendant's state or federal fights to an effective
cross-examination by so limiting defendant's cross-examination of
the mother. A trial justice has broad discretion in determining the
scope of cross-examination, and absent abuse of that discretion we shall
not disturb the trial court's ruling. See State v.
Brisson, 619 A.2d 1099, 1105 (R.I. 1993). Here we conclude that
there was no such abuse.

In Brisson, a case in which the defendant was
charged with tint-degree sexual assault of his young stepson, this court
similarly addressed the propriety of cross-examining a witness on the
failure to inform authorities of the alleged abuse. Id.
at 1105. At trial there, a cousin of the defendant testified that
alter the abuse allegations were made against the defendant, the stepson
told him that he had not been fondled. Id. at
1101. We concluded that the trial judge properly allowed
cross-examination of the cousin concerning his failure to report this
potentially exculpatory information to law enforcement authorities.
Id. at 1105. Even though we found that there was
"nothing inherently erroneous" in cross-examining a defense
witness concerning his failure to report potentially exculpatory
information to law enforcement authorities, we were also quite clear
that our ruling was limited, Id. There we
emphasized that our position was not to be interpreted as a
"broad-based invitation to inquire haphazardly of every witness
whether he or she reported information to law enforcement
authorities" and that the trial justice "must exercise his
or her sound discretion to ensure that the jury is not misled by efforts
to impeach the credibility of a witness." Id.
Thus, to achieve this end, we acknowledged in
Brisson that a trial justice has broad discretion
to limit cross-examination based on a witness's failure to report
information to the authorities.

We are of the opinion that the trial justice's exclusion of
defense counsel's proffered line of questioning in the case at bar
did not constitute an abuse of his discretion or impermissibly intrude
upon defendant's right to confront witnesses against him. First,
it was consistent with our ruling in Brisson,
which governs any situation (as here) in which a witness is questioned
about an alleged failure to notify the authorities and not merely those
situations involving cross-examination of defense witnesses. Unlike the
situation in Brisson, the cross-examiner here
sought to put before the jury a specific statutory provision, thus
implying that the witness was in violation of a specific legal
obligation to report. The trial justice in this case correctly concluded
that defense counsel's doing so might mislead the jury, and thus
he properly excluded any questions about whether the witness had
reported the abuse to DCYF. As the trial justice stated, the mother is
"not on trial here. Her credibility is always an issue, but
she's not on trial here." Moreover, defense counsel here
provided no foundation that the mother had any knowledge of a duty to
report and that, even if she had such knowledge, she would have notified
DCYF of her daughter's sexual abuse if she had considered her
allegations to have been credible.

Such testimony could also have conveyed to the jury that the
mother's failure to report her daughter's abuse to DCYF
indicated that even the mother did not believe the daughter's
testimony. But this construction would constitute the same kind of
negative vouching that we condemned in State v.
Haslam, 663 A.2d 902, 906-07 (R.I. 1995) (testimony by a DCYF
investigator that sexual-abuse accusations by the defendant were
"unfounded" held to constitute impermissible negative
vouching).

We also note the potential existence of significant conflicting
considerations that might militate against the mother's providing
DCYF with notice in circumstances such as those present in this case.
For example, the mother may have preferred to resolve this situation
without involving the authorities, especially if she perceived that
notification might jeopardize her relationship with her other children.
Because these considerations tend to undercut any inference that could
be drawn that the mother's failure to report necessarily reflects
adversely on her credibility or that of her daughter, we believe the
trial justice could properly restrict such a line of inquiry to prevent
the jury from being misled on this point. Accordingly we affirm the
trial court's exclusionary ruling.

IV

The Admission of Alleged Bolstering Testimony

The defendant's final claim of error is that the trial justice
supposedly permitted a witness to engage in bolstering. But this
contention was not preserved for review because no such objection was
specifically raised with the trial justice. In any event the
witness's testimony, taken in context, did not constitute
impermissible vouching.

A. Defendant Failed to Preserve this Issue for
Appeal

According to Rhode Island's well-settled
"raise-or-waive" rule, a trial justice's claimed
errors that are not specifically objected to at trial - - that is,
by an objection that is "sufficiently focused so as to call the
trial justice's attention to the basis for said objection"
- - are not preserved for consideration by this court on appeal.
State v. Toole, 640 A.2d 965,
972 (R.I. 1994) (quoting State v. Warren,
624 A.2d 841, 842 (R.I. 1993)). "[A]llegations of error committed
at trial are considered waived if they were not effectively raised at
trial, despite their articulation at the appellate level."
Toole, 640 A.2d at 973. (Emphasis added.) Because
defendant here failed to raise an effective bolstering objection before
the trial justice, this court may not consider this specification of
error on appeal.

On direct examination Janikuak testified concerning her discussions
with complainant. After she said that she was "very cautious to
make sure that what [complainant] was telling me was the truth because
we're trained to be sure that just because someone makes an
allegation does not mean it's true," defense counsel simply
stated, "[O]bjection." The court immediately overruled the
objection. However, no grounds were stated either for the objection or
for the court's overruling. There was no mention made by defendant
of bolstering. Indeed there was no motion to strike the testimony, and
the objection itself came too late to be of assistance to defendant. The
defendant also failed to request a mistrial or to ask that any
cautionary instruction be-given to the jury. Thus the trial justice was
never apprised that defendant considered the pastor's remarks to
constitute bolstering. Accordingly under our established raise-or-waive
role defendant should not be allowed to pursue this issue on appeal.

In Toole a defendant who had been convicted on
various counts of sexual assault argued on appeal, among other things,
that the prosecutor improperly questioned witnesses to vouch for their
truthfulness - - on several occasions querying a witness about
"the real reason" she had performed a certain act. 640 A.2d
at 972. He contended that this questioning was improper because it
implied that the prosecutor had some special knowledge regarding the
facts of the case. Id. The state responded that
the defendant did not preserve this issue for appeal because the
objection asserted at trial by the defense was a "general rather
than a specific" objection. Id. This court
agreed and concluded that the defendant's objection was "not
sufficiently specific or focused for us to review this contention in
this particular instance." Id. at 973.

In this case not only was defense counsel's objection
ineffective because it was not specific, but his colloquy with the trial
justice led the latter to conclude that defendant's objection to
the pastor's statement was hearsay based. A close review of the
trial transcript reveals that defense counsel's proffered
objections concerning Janikuak's testimony about her meeting with
complainant (wherein complainant first divulged to the pastor that
defendant had sexually abused her) were strictly limited to their
alleged hearsay status. Indeed the allegedly offending statement itself
is sandwiched between bookend hearsay
objections.13

Although defendant thereby waived any bolstering objection, he also
fails to proffer any legitimate exception to the raise-or-waive rule
here. A party must satisfy three criteria to qualify for such an
exception: "(1) the error complained of must be more than harmless
error, (2) the record must be sufficient to permit a determination of
the issue, and (3) counsel's failure to raise the issue at trial
must be attributed to a novel rule of law that counsel could not
reasonably have known during the trial." State v.
Cassey, 543 A.2d 670, 676 (R.I. 1988). Moreover, a
defendant's basic constitutional rights must be at issue.
Id. Because the bolstering argument is hardly a
novel rule of law, there can be no colorable claim that this stringent
three-part test has been satisfied here.

Taking the pastor's statement in the context of her entire
testimony, we also believe it is clear that she was not attempting to
bolster complainant's credibility, nor would a reasonable jury
have so construed her testimony. The balance of what the pastor said
demonstrates that she had made no judgment at any point concerning the
truth or the falsity of what she had been told by complainant, or for
that matter by defendant. Rather she was only attempting to mediate
between them to help them resolve this family conflict. Thus in context
Janikuak's testimony shows that she was not either endorsing the
complaining witness or discrediting defendant. Indeed at one point she
stated, "I still was, you know, couldn't see, one was saying
yes and one was saying no. I suggested that they see a
psychologist."

Hence even if defendant had preserved his bolstering argument for
appeal, we are of the opinion that there was no bolstering here because
the allegedly offending statement was not an attempt to vouch for the
credibility of another witness within the meaning of
State v. Haslam, 663 A.2d 902 (R.I. 1995), and
State v. Miller, 679 A.2d 867 (R.I. 1996),
especially when it is viewed in the overall context of Janikuak's
testimony. Moreover, the particular circumstances here are
distinguishable from the situations recently presented to us in
Haslam and Miller, where we
reached specific conclusions about what type of testimony constitutes
impermissible vouching.

We agree that a witness should not be permitted to offer an opinion
concerning the truthfulness of the testimony of another witness, and his
or her testimony will be inadmissible if it literally addresses
credibility or has the same "substantive import."
Miller, 679 A.2d at 872;
Haslam, 663 A.2d at 905. However, in order to
determine whether the testimony "would be perceived by the jury as
a conclusive opinion" on a complainant's credibility,
Haslam, 663 A.2d at 906, we believe that the
reviewing court must consider the offending statements in the context of
the witness's overall testimony before the jury.

In the case at bar the testimony preceding Janikuak's alleged
bolstering statement addressed the pastor's initial meetings with
complainant wherein she first disclosed defendant's sexual abuse.
The statement itself concerned the pastor's reaction to the
witness's allegations:

"Prosecutor: Upon learning this
information, what was your reaction? What was your response?

"Janikuak: As to what she said to
me?

"Prosecutor: Yes, without saying what she
said.

"Janikuak: I was very cautious to make
sure that what she was telling me was the truth because we're
trained to be sure that just because someone makes an allegation does
not mean it's true."

Although this testimony reveals that the pastor was trying to gauge
the truthfulness of complainant's revelations before proceeding
further in her counseling, the substantive import of Janikuak's
testimony - - when viewed in its entire context - - was
not that complainant was being truthful in her
allegations. Significantly, a close look at Janikuak's overall
testimony on this point reveals that the pastor herself could not
determine whether complainant (in her allegations) or defendant (in his
denials) was being truthful. And it also highlights the fact that the
pastor was merely attempting to mediate this family crisis while moving
cautiously in light of the serious nature of the
allegations.14 Accordingly we
conclude that Janikuak's overall testimony could not have been
reasonably perceived by the jury as vouching for the credibility of
complainant's sexual-abuse allegations.

Moreover, this situation is also distinguishable from the testimony
we found offensive in Miller and
Haslam for other reasons. In
Miller the defendant, a college track coach, had
been convicted on one count of first-degree sexual assault of one of his
student athletes. 679 A.2d at 869. The complainant testified at trial
that she had told her mother about the rape. Id.
at 872. However, a police detective testified for the defendant that she
had spoken to the mother several months later and that the mother never
brought this fact to the detective's attention.
Id. On cross-examination the detective was then
permitted, over the defendant's objection, to testify that it was
"not at all uncommon" for people to neglect to elucidate
details of an incident to an investigating police officer fully.
Id. On appeal the defendant contended that this
testimony constituted impermissible vouching for the mother because it
purported to explain the inconsistencies between the complainant's
trial testimony and the mother's comments to the investigating
officer. The defendant argued that this testimony also suggested to the
jury that the mother's failure to inform the investigating officer
should not have cast any shadow on her credibility.
Id. We agreed, especially in light of the fact
that the evidence was closely balanced and that credibility was
therefore of paramount importance. Id. at 873.

Unlike the situation in Miller,
Janikuak's testimony does not purport to explain any testimony
that is inconsistent with complainant's sexual abuse allegations.
In addition, unlike
Miller, where the jury heard extensive
testimony about the lack of evidence to corroborate the sexual-assault
charges against the defendant, complainant's word here was not the
only evidence supporting defendant's conviction. Indeed, defendant
himself admitted to two separate witnesses, and at trial, that acts of a
sexual nature did occur between him and complainant. Most significantly,
defendant admitted to Dr. Tanguay, in the presence of
complainant's mother, that he had sexual activity "two to
three times in a month" with complainant. Thus even without
Janikuak's testimony the state had substantial other evidence to
prove defendant's guilt beyond a reasonable doubt.

In Haslam the prosecution - - through
questioning of a professional sex-abuse-recovery counselor whom the
victim had seen periodically for over a two-year period - -
repeatedly sought to emphasize that the victim had been undergoing
therapy with a sexual-abuse counselor as part of her ongoing recovery.
663 A.2d at 904-05. Given that the counselor had no firsthand knowledge
of abuse, that she was not a witness to any acts of molestation, and
that she obtained her knowledge only via conversations with others, we
determined that her repeated references to "sexual abuse
recovery" counseling "could only impress upon the jury that
[the complainant there] had indeed been sexually abused, just as [the
complainant] herself had testified, and that [the counselor] obviously
believed that [the complainant] had been sexually abused."
Id. at 906. Our conclusion was further justified
by the fact that the recovery sessions had been ongoing for over two
years, including at the time of trial. Id.

But here the prosecution did not seek to elicit, nor did the witness
offer, testimony that complainant was in counseling with Janikuak as
part of some sexual-abuse-recovery program, thus implicitly validating
the underlying allegations of sexual abuse. Instead Janikuak's
testimony clearly reveals her role as a mere mediator who soon referred
the parties on to a psychiatrist (Dr. Tanguay) before whom defendant
admitted to his criminal misconduct. Thus, unlike the situation in
Haslam, the pastor was not a professionally
trained sexual-abuse counselor providing treatment to a victim. In fact
Janikuak explicitly disavowed that she was "dealing in sexual
abuse," testifying that her presence at trial was meant only
"to make a statement about what was shared with me."

In Haslam we also found the testimony of
another prosecution witness to constitute impermissible vouching. There,
a child-protective investigator for DCYF was allowed to testify that a
complaint lodged by the defendant stating that the complainant's
brother had sexually abused the child victim was
"unfounded." 663 A.2d at 906-07. We concluded that this
declaration had the effect of conveying that witness's belief that
the defendant's subsequent testimony on the subject was not to be
believed. Id. at 907. In contrast,
Janikuak's remark in the case at bar clearly do not rise to the
level of the "unfounded" comment by the DCYF investigator in
Haslam.

Just as a reviewing court should not pick out one isolated statement
from a slew of jury instructions without considering all the jury
instructions as a whole, State v. Peguero, 652
A.2d 972, 974 (R.I. 1995), so too should it not pick one isolated
statement in a witness's testimony out of context from the whole
of it. Here, there is nothing in Janikuak's testimony taken as a
whole that expresses any opinion at all about the credibility of either
the complainant or the defendant. Finally, having failed to object on
the grounds of bolstering, having failed to move to strike the answer
that is now targeted on appeal, and having failed to request any
cautionary instruction, much less a mistrial, the defendant has not
preserved this alleged error for review.

Conclusion

For these reasons the defendant's appeal is denied and the
judgment appealed from is affirmed.

Weisberger, Chief Justice, with whom Justice Shea
(ret.) joins, dissenting. In dissenting I respectfully point out
that the history of liberty has largely been the history of the
observance of procedural safeguards. McNabb v. United
States, 318 U.S. 332, 347, 63 S.Ct. 608, 616, 87 L.Ed. 819,
827-28 (1943) (Frankfurter, J.). I recognize that the defendant in this
case, Danny L. Brown (Brown), was accused of a heinous crime. After
conviction he was sentenced to a term of forty years' imprisonment
on each of the six counts charged. It is of paramount importance that a
person accused of such a crime be afforded all the procedural safeguards
that are guaranteed by the State and the Federal Constitutions as well
as our procedural rules and case law interpreting these rules.

I believe that defendant was denied procedural safeguards and
information that may well have had an important bearing on his ability
to prepare a defense. I would hold that three of the four issues raised
by defendant warrant reversal. Each of these issues will be discussed in
the order in which they are addressed by the majority. Such other facts
as are pertinent to the discussion of each issue will be provided.

Confrontation Clause

All the issues raised by defendant fall within the constitutional
guarantees embodied in the confrontation clause of the Sixth Amendment
to the United States Constitution made applicable to the states through
the due process clause of the Fourteenth Amendment, and its state
analogue, article 1, section 10, of the Rhode Island Constitution.

The Sixth Amendment to the United States Constitution guarantees that
"the accused shall enjoy the fight * * * to be
confronted with the witnesses against him." Similarly our
Declaration of Rights, article 1, section 10, of the Rhode Island
Constitution provides, "In all criminal prosecutions, accused
persons shall enjoy the right * * * to be confronted with
the witnesses against them."

Pretrial Discovery Error

Brown's first claim of error arose during the November 8, 1993
pretrial heating on defendant's motion to compel production off
among other things, "[t]he names and addresses of any and all
pediatricians or medical doctors from whom [Emily] may have received
treatment or been examined from the period of May of 1983 through
January of 1987." The defendant explained his basis for requesting
this information as follows:

"Your Honor, the reason
for that request, your Honor, is that the alleged acts are to include
that of anal intercourse and also sexual penetration. The child is
supposed to have been between eight and ten years old at the time of
this particular incident. Clearly, there would be medical evidence which
would show up through a medical examination. That is the basis for my
request * * * relative to the pediatricians."

The hearing justice expressed her belief that defendant's
proffer was a "nice request" but denied it nevertheless.
Brown asserts that this denial was error. With this contention the
dissenting justices agree.

Questions concerning the relevancy of evidence are left to the sound
discretion of the trial justice, State v. Kholi,
672 A.2d 429 (R.I. 1996), who must "foster a search for the math
by giving reasonable latitude to the purpose of cross-examination while
preserving a fair and orderly trial." Id. at
437 (quoting State v. Bennett, 122 R.I. 276, 278,
405 A.2d 1181, 1183 (1979)). That the law entrusts a thai justice with a
considerable degree of discretion does not permit him or her to decline
to utilize the objective analysis the law commands. See
United States v. Burr, 25 F.Cas. 30, 35 (C.C.D.Va. 1807) (No.
14692D) (Marshall, C.J.) ("[A] motion to [the discretion of the
court] is a motion, not to its inclination, but to its judgment; and its
judgment is to be guided by sound legal principles").

The majority correctly reiterates the general rule that the
confrontation clause is fundamentally a trial right and should not be
confused with a "constitutionally compelled rule of pretrial
discovery." Pennsylvania v. Ritchie, 480
U.S. 39, 52, 107 S.Ct. 989, 999, 94 L.Ed.2d 40, 54 (1987). Yet the
principle will compel a state to produce material when the failure to do
so would improperly restrict the types of questions defense counsel may
ask during cross-examination. State v. Kelly, 554
A.2d 632, 635 (R.I. 1989). Certainly "[t]he mere possibility
[without more] that an item of undisclosed information might have helped
the defense * * * does not establish
'materiality' in the constitutional sense."
United States v. Agurs, 427 U.S. 97, 109-10, 96
S.Ct. 2392, 2400, 49 L.Ed.2d 342, 353 (1976). Instead a defendant
"must at least make some plausible showing of how [the requested
material] would have been both material and favorable to his
defense." United States v.
Valenzuela-Bernal, 458 U.S. 858, 867, 102 S.Ct. 3440, 3446, 73
L.Ed.2d 1193, 1202 (1982). The defendant's request in the instant
case fell squarely within the parameters of these principles.

The state relies too heavily on the fact that in denying
defendant's request, the motion justice's exact words were
"I'm not going to grant it [Brown's request] at this
point." Apparently the state's argument, unfortunately
sanctioned by the court today, is that because the hearing justice lea
the possibility of discovery open ("at this point"),
defendant cannot now complain because he failed to repeat his request at
some later date.15 This
implicit assertion that defendant's failure to request again that
which had been once denied him constituted waiver of the issue and
precludes him from complaining now is without support in law and
unpersuasive in concept.

To be sure, a more prudent strategy might have been for defendant to
have pressed his discovery requirements at or before trial to a
different justice and thus avoid the instant challenge. Counsel for
defendant may have decided that it would have been futile to revisit the
issue since the factual circumstances had not changed from the time it
was first denied by the motion justice. In respect to this possibility I
decline to speculate. Presentation of the same motion in the absence of
a change of circumstances or an expansion of the record would probably
have been precluded by the law-of-the-case doctrine. See
Payne v. Superior Court, 78 R.I. 177, 183-85, 80 A.2d 159, 163-64
(1951).16 I am mindful that
the state need not hold an accused's hand in order to ensure that
he or she takes advantage of each and every procedural safeguard offered
under our legal system. The constitutional guarantees promised in both
the Federal and the State Constitutions are, after all, of the negative
variety. That is, they forbid the state or federal government from
denying to the accused that bundle of fights we
refer to collectively as "due process." See
DeShaney v. Winnebago County Department of Social Services, 489
U.S. 189, 195, 109 S.Ct. 998, 1002-04, 103 L.Ed.2d 249, 258-59 (1989)
(discussing "negative" quality of substantive due-process
rights). The proper provision of those rights lies somewhere between
denying outright access to the right and, conversely, holding the state
to a duty of affirmatively ensuring that the accused avails him or
herself of those
protections.17 Accordingly I
decline to hold that defendant waived his right to contest the motion
justice's denial, however equivocal, of his reasonable request for
discovery.

In State v. Kelly, 554 A.2d 632 (R.I. 1989),
the defendant (Kelly) appealed his conviction of first-degree sexual
assault. Kelly claimed that the trial justice's denial of his
request to review the victim's Department of Children, Youth and
Families (DCYF) records constituted error. Id. at
634. We held that although Kelly had no cognizable entitlement to the
records pursuant to Rule 16 of the Superior Court Rules of Criminal
Procedure, he did enjoy such a right under both article 1, section 10,
of the Rhode Island Constitution and the Sixth Amendment to the United
States Constitution. 554 A.2d at 635. We explained that even though the
DCYF records at issue were protected from disclosure by statute, G.L.
1956 §42-72-8, when an accused's constitutionally protected
right to confront witnesses is in jeopardy, the statute must yield. 554
A.2d at 636. Similarly, in the instant case any confidentiality relating
to medical records must yield to the necessity of preparation for trial
when the allegations in the indictment place the physical condition of
the complaining witness in issue. See Bartlett v.
Danti, 503 A.2d 515 (R.I. 1986).

I believe that defendant's request was both reasonable and
relevant, given the facts as established at the time of the motion
justice's denial. Brown sought only the identity of those
physicians who may have examined the complainant during the years in
question, information that is clearly not subject to protection from
disclosure by law.18 Whether
the state had such information in its possession, or any underlying
records, is unclear from the record. I can discern, and the motion
justice offered, no adequate explanation for denying this request.
Defense counsel's stated rationale for desiring this information
was more than sufficient to establish its relevancy.

The majority suggests that the right of confrontation arises only
upon the commencement of trial. Although this statement may as a general
rule have validity, it is scarcely exhaustive. In the case at bar,
counsel for defendant sought in a pretrial motion to obtain information
concerning the identity of pediatricians or medical doctors who may have
treated Emily from May 1983 through January 1987. It is obvious beyond
doubt that providing such information after or immediately before trial
had begun would have been useless. Such a request could certainly have
led to the discovery of relevant evidence but not without considerable
preparation that might include the issuance of subpoenas pursuant to
Rule 17(c) of the Superior Court Rules of Criminal Procedure, the
interviewing of potential medical witnesses, and/or the taking of
depositions pursuant to Rule 15 in the event that one or more medical
witnesses might be unable to attend the trial.

This type of preparatory activity would be impossible to accomplish
once the trial had begun without requiring an extensive continuance to
permit the information to be sifted and placed in such a posture a to be
susceptible of use at trial. Consequently the request made well in
advance of trial was a prudent act and indeed the only method by which
the information, if relevant, could have been utilized at trial.

The confrontation clause must be invoked at a time and in
circumstances when its invocation will be meaningful. The information
defendant sought was potentially relevant to the critical issue in the
case, namely, Emily's credibility as well as that of her mother.
There is no doubt that defendant's request was fully ripe when
made, a point made clear by defense counsel's proffer, and there
was no justification for denying the request or for delaying a
decision.

In the event that the motion justice considered the request to be
overbroad, she might have modified it to come within the bounds of
potential relevance. However, I believe that denying it out of hand
deprived defendant of the opportunity to explore a potential source of
relevant evidence. It should be noted that defendant never had the
burden of proof or persuasion. Evidence that may raise a reasonable
doubt in the minds of the jurors can be vital to an effective
defense.

The majority suggests the appropriate remedy for such an error would
be to remand for a hearing concerning whether the denial of this request
for the names of potential witnesses was prejudicial. I would encourage
the majority to issue such an order. I must note, however, that since I
believe that a new trial is warranted in respect to two other issues set
forth below such remand would not accord defendant the full relief to
which I believe he is entitled.

Cross examination of Pastor Janikuak

Brown alleges that the trial justice erred in curtailing the
cross-examination of pastor Elizabeth Janikuak (Janikuak). Brown, who
has always maintained his innocence, endeavored during the
cross-examination of Janikuak to question her regarding the construction
of a new church building that was erected in Smithfield, Rhode Island,
in 1991. Brown was instrumental in securing the services of several of
the construction contractors employed by Janikuak to build the new
facility. One of the subcontractors engaged by defendant was his cousin,
Al Brown, who performed excavation work on the project. According to
defendant's proffer at trial, problems developed during the
construction of the church, prompting Al Brown to file a civil suit and
to impose a lien against the church, seeking money damages for
Janikuak's failure to pay certain costs.

Defense counsel asked Janikuak whether a man named Al Brown had been
involved in the construction of the new church facility, to which
question Janikuak replied, "No. he didn't. No way."
The trial justice refused to allow defendant to pursue this line of
questioning, reasoning that because it was Al Brown, not Danny Brown,
who had sued the church, the specter of bias was too attenuated to
warrant exploration. As a result defendant was unable to probe possible
bias harbored against defendant by Janikuak because of the lawsuit
and/or defendant's instrumental role in the trouble some project.
Moreover, Janikruak's emphatically negative response to the
question posed may have proven detrimental to her
credibility had defendant been able to pursue this line of
inquiry and to demonstrate that Janikuak had not been candid about Al
Brown's involvement in the construction of the new church.

In addressing defendant's confrontation argument, we feel that
it is important to be mindful of the small universe of witnesses and
their respective testimony in this case. Janikuak, though not involved
with either the Browns or the Does during the period of the alleged
sexual abuse, evolved into a central, if not the
crucial, witness for the prosecution. If the trial testimony of
Brown and Emily cancel each other out (and there is no dispute that
there were no eyewitnesses to the alleged abuse) then Janikuak becomes
pivotal to the jury's understanding of the facts and the
jury's reconciliation of the discrepancies embedded in the
testimony of the other principals. After all, it was Janikuak, a
purportedly disinterested witness, who, (1) corroborated the most
crucial testimony of both of the state's primary witnesses, Emily
and Doe, (2) was the original recipient of Emily's trust, and (3)
testified that Brown had acknowledged some contact between Emily and
himself.

A defendant's right to cross-examine the state's
witnesses is a "primary interest" secured by the
confrontation clause under both the Federal and the State Constitutions.
State v. Freeman, 473 A.2d 1149, 1153 (R.I. 1984)
(quoting Davis v. Alaska, 415 U.S. 308, 315-16, 94
S.Ct. 1105, 1110, 39 L.Ed.2d 347, 353 (1974)). The United States Supreme
Court has characterized this right as follows:

"The partiality of a
witness is subject to exploration at trial, and is 'always
relevant as discrediting the witness and affecting the weight of his [or
her] testimony.' * * * exposure of a witness'
motivation in testifying is a proper and important function of the
constitutionally protected right of cross-examination."
Davis, 415 U.S. at 316-17, 94 S.Ct. at 1110, 39
L.Ed.2d at 354.

We have liberally construed the mandate of Davis
in a manner consistent with our belief that "[t]he right of
confrontation * * * [requires] that a jury be allowed to
evaluate any motive that a witness may have for
testifying." State v. Olsen, 610 A.2d 1099,
1102 (R.I. 1992) (quoting State v. Beaumier, 480
A.2d 1367, 1372 (R.I. 1984)). (Emphasis added.) Because the very nature
of cross-examination is "necessarily exploratory,"
"[c]ounsel often cannot know in advance what pertinent facts may
be elicited." Alford v. United States, 282
U.S. 687, 692, 51 S.Ct. 218, 219, 74 L.Ed. 624, 628 (193).

Cross-examination has been described as the "greatest legal
engine ever invented for the discovery of truth." 5 J. Wigmore,
Evidence §1367 at 32 (Chadbourne rev. 1974).
Without a doubt an important component of this engine is the opportunity
to impeach a witness by showing "that a witness has bias or
prejudice toward one of the parties or has a personal interest in the
outcome of the case which can be expected to color this [or her]
testimony and undermine its reliability." In re
Douglas L., 625 A.2d 1357, 1360 (R.I. 1993) (quoting
State v. Eckhart, 117 R.I. 431, 435, 367 A.2d
1073, 1075 (1977) ). "[T]he scope of cross-examination,
even for the purpose of exposing bias, is not unlimited,"
State v. Doctor, 690 A.2d 321, 327 (R.I. 1997)
(quoting State v. Feluzat, 578 A.2d 93, 95 (R.I.
1990) ), but, instead is left to the sound discretion of the
trial justice. State v. Benevides, 420 A.2d 65, 69
(R.I. 1980). Nonetheless, the right itself may not be given or withheld
at the pleasure of the trial justice. State v.
DeBarros, 441 A.2d 549, 552 (R.I. 1982). "[The
discretionary authority to limit cross-examination comes into play
[only] after there has been permitted as a matter of right sufficient
cross-examination to satisfy the Sixth Amendment."
Id. (quoting Springer v. United
States, 388 A.2d 846, 855 (D.C. App. 1978)). We have previously
declared that cross-examination sufficient to satisfy the constitutional
guarantee requires the trial justice to afford the accused
"reasonable latitude * * * to establish or reveal
possible bias, prejudice, or ulterior motives as they may relate to the
case being tried." Doctor, 690 A.2d at 327
(quoting State v. Anthony, 422 A.2d 921, 924 (R.I.
1980); see Chambers v. Mississippi, 410 U.S. 284,
295, 93 S.Ct. 1038, 1046, 35 L.Ed.2d 297, 309 (1973) (quoting
Berger v. California, 393 U.S. 314, 315 89l S.Ct.
540, 541, 21 L.Ed.2d 508, 510 (1969) ), and explaining that
denial or significant diminution of cross-examination "calls into
question the ultimate 'integrity of the fact-finding
process'").

Applying these time-tested principles to the instant case leads
inevitably to the conclusion that Brown's constitutionally
protected interest in confronting adverse witnesses was thwarted by the
trial justice's premature intervention at the behest of the
prosecution. First, in respect to Janikuak's credibility, had
defendant been able to confront her with documentary evidence that Al
Brown had in fact been associated with the construction project, it may
have cast a less hospitable light on the totality of her severely
damaging testimony. Second, it is beyond debate that the pendency of
civil litigation between a witness and a party is relevant to show bias.
Debarros, 441 A.2d at 551-52; Commonwealth v.
Maffei, 471 N.E.2d 1364, 1365 (Mass.App.Ct. 1984).

Although Brown himself was not a named party to the civil action, the
fact that he was instrumental in assembling the construction team and
was related to plaintiff who was suing Janikuak and her church merited
at least some opportunity to probe the issue. See, e.g.,
Spoerri v. State, 561 So.2d 604, 606 (Fla. Dist. Ct. App. 1990)
(reversing child-sexual assault conviction when defendant was restricted
in cross-examining victim's mother who was being evicted by her
landlord, the defendant's employer). The trial justice's
dismissal of defense counsel's proffer without such an opportunity
denied Brown this proper avenue of
questioning.19

The majority suggests that counsel for the defense did not present to
the trial justice an adequate basis to pursue his cross-examination in
respect to bias. Indeed, the majority cites State v.
Brennan, 527 A.2d at 654 (R.I. 1987), for the proposition that
"a fishing expedition on cross-examination may properly be brought
to a halt when it comes to obvious that the pond is devoid of
fish." I must respectfully but vehemently disagree with the notion
that there was any indication that this pond was "devoid of
fish." The only question that defense counsel was permitted to ask
was whether Al Brown had "acted in building"
Janikuak's church. After an emphatically negative response to this
question, defense counsel was precluded from further questioning event
though he set forth in some detail, as quoted in the majority opinion,
his reasons for exploring Janikuak's potential bias. Thus in this
case I cannot discern whether there were fish in the pond because the
defendant was not permitted to cast his line. The fact that defendant
was allowed to testify concerning the role of his cousin and the
relationship between the cousin and Janikuak is no substitute for
effective cross-examination of Janikuak on this issue.

Writing for the Court in Van Arsdall,
then-Associate Justice Rehnquist enumerated factors reviewing court
could consider in determining the magnitude of the error: (1) "the
importance of the witness' testimony in the prosecution's
case," (2) "whether the testimony was cumulative," (3)
"the presence or absence of evidence corroborating or
contradicting the testimony of the witness on material points,"
(4) "the extent of the cross-examination otherwise permitted,
and" (5) "the overall strength of the prosecution's
case." Van Arsdall, 475 U.S. at 684, 106
S.Ct. at 1438, 89 L.Ed.2d at 686-87

Application of the above criteria to the curtailment of Brown's
opportunity to cross-examine Janikuak weighs against declaring the error
harmless beyond a reasonable doubt. Janikuak's testimony, and her
credibility, were undeniably at the forefront of the jury's
determination of defendant's guilt or innocence. The state's
ability to bear its burden of proof was borne in no small part thanks to
the damaging testimony of Janikuak. Her testimony was not duplicative or
cumulative, nor was there corroborating evidence of her testimony save
that of Doe. The majority's rendition of this evidence could lead
a reasonable reader to conclude that Danny Brown testified to the
admission of sexual abuse. This was not the case. The defendant
testified, just as he had related his version of events previously, that
the only physical contact he had had with Emily was the innocent contact
that she initiated. As indicated by the majority,
see majority op., part II, the "two or three
times" testimony came solely out of the mouth of Emily's
mother, Judy Doe, who claimed that defendant made such an admission to
Dr. Richard Tanguay. It is critical, however, to note that nowhere inn
the vague testimony of the doctor was there any mention of such an
admission by defendant. Indeed a reading of Dr. Tanguay's
testimony clearly indicates that he had virtually no specific
recollection of any admission by Danny Brown. The bulk of his testimony
related to his experience with sexual-abuse cases in general rather than
the case concerning which he purported to testify. Pastor Janikuak,
then, was presented to the jury as a seemingly disinterested witness who
did not fit defendant's theory that Emily and Doe had concocted
the allegations as retribution for Brown's extramarital
assignations and divorce of Doe. Consequently the trial justice's
restriction of this topic of cross-examination completely deprived Brown
of his most persuasive basis for attacking this witness.

One can only speculate the limitless possibilities the impact of
Janikuak's alleged bias may have had on the jury of its findings
concerning defendant's fate. The burden placed upon the state to
prove each element of the crime beyond a reasonable doubt renders
evidence of potential bias extremely significant since reasonable doubt
may well be based upon the impeachment of the credibility of an
important witness. Because "[a] reasonable jury might have
received a significantly different impression of [Janikuak's]
credibility had [Brown's] counsel been permitted to pursue his
propose line of cross-examination," see Van
Arsdall, 475 U.S. at 680, 106 S.Ct. at 1436, 89 L.Ed.2d at 684, I
believe defendant is entitled to a new trial.

Bolstering Testimony of Pastor Janikuak

Brown's next claim of error concerns Janikuak's testimony
regarding her meeting with Emily in which Emily first divulged that her
stepfather, Brown, had sexually abused her. In particular, defendant
objects to the following:

"[Prosecutor]:
Without telling us her words, did she inform you of any incidents that
she had been involved in?

"[Defense
Counsel]: Objection, your Honor.

"[The
Court]: Just yes or no.

"[Janikuak]:
Yes.

"[Prosecutor]:
And- -

"[The
Court]: Overruled.

"[Prosecutor]:
Upon learning this information, what was your reaction? What was your
response?

"[Janikuak]
As to what she said to me?

"[Prosecutor]: Yes, without saying what she said.

"[Janikuak]:
I was very cautious to make sure that what she was telling me was the
truth because we're trained to be sure that just because someone
makes an allegation does not mean it's true.

"[Defense
Counsel]: Objection, your Honor.

"[The
Court]: Overruled.

"[Prosecutor]:
And how did you go about doing that?

"[Janikuak]:
I just said to her, 'Do you realize the seriousness of your
allegations?'

"[Prosecutor]:
Did you then take any action?

"[Janikuak]:
Uh-huh. I told her that she needed to, you know, continue to look
at this aspect of the truthfulness of what she was saying, and that I
would confront Danny Brown with what she said." (Emphasis
added.)

Later in her testimony Janikuak recalled defendant's telling
her of his claim that it was Emily who had inappropriately touched
him.

"[Prosecutor]:
What was your reaction to his saying this?

"[Janikuak]:
I was shocked because I'm the mother of four children, and I
can't, if my children were to come to me and say that about their
father, I mean, I would be appalled that my husband would tell me that
my child of eight years old was the perpetrator. He's 26 or
28.

"[Prosecutor]:
What did you say to him?

"[Janikuak]:
I said, 'I can't believe a 26 or 28 year old man would

say that an eight year old child was the
perpetrator.'"

The determination of the truthfulness or credibility of a witness
lies within the exclusive province of the jury. State v.
James, 557 A.2d 471, 473 (R.I. 1989). Accordingly it is
impermissible for a witness to offer an opinion concerning the veracity
of another's testimony. Id. Even when one
witness does not literally state his or her opinion concerning the
credibility of another witness, if the challenged testimony would have
the same substantive effect, the testimony is inadmissible.
State v. Haslam, 663 A.2d 902, 905 (R.I. 1995).
Such bolstering of a witness's credibility, especially crucial
when it is the complaining witness's testimony that is being
buttressed, invades the exclusive territory of the factfinder,
Id. at 905-06. Moreover. so-called bolstering
testimony offered by one held in high esteem in the community may
particularly influence the jury. See, e.g., State v.
Desmarais, 479 A.2d 745, 748 (R.I. 1984); State v.
Nicoletti, 471 A.2d 613, 617 (R.I. 1984) (acknowledging
influential nature of police testimony); State v.
Castore, 435 A.2d 321, 326 (R.I. 1981) (recognizing that a
doctor's testimony would be accorded great weight by
factfinder).

Allowing such testimony, or falling to admonish the jury to disregard
it, creates a substantial risk that a defendant faced with such
testimony willl be deprived of a jury's judgment on all those
issues that the law commits to its determination. The risk is that the
jurors might reasonably defer to the judgment of one with purportedly
"actual" knowledge rather than rely solely on their
collective determination, restricted as it may necessarily be by the
sometimes cloistering effect of our evidentiary rules. The trial
justice's error in failing to take steps to equalize the
impermissible impact of Janikuak's vouching effectively allowed
Janikuak to evaluate credibility, "and, in effect, to sit in the
jury box and become the thirteenth juror."
Castore, 435 A.2d at 326.

The majority suggests that if consideration is given to the entirety
of Janikuak's testimony it becomes clear that she never actually
decided for herself who was telling the truth. What is important,
however, is not what Janikuak's subjective conclusions may have
been but rather what the jury might have reasonably concluded on the
basis of the words spoken. Here it is clear that the bell was rung early
in her testimony. First, she informed the jury of her acuity in divining
truth. This was later compounded when she testified to telling defendant
that she was "shocked" and "appalled" by his
explanation of events and could not believe any man his age would tender
such an excuse. Nothing about which Janikuak subsequently testified was
sufficient to dilute this powerful vouching or erase it from the
jury's consideration.

With unerring twenty-twenty hindsight, the majority faults defense
counsel for failing to make crystal clear to the trial justice that this
objection rested upon the principle of bolstering. However, the very
nature of Janikuak's statement immediately preceding the objection
made this issue so obvious that further clarification to the trial
justice was scarcely required. It is further true, as the majority
indicates, that a motion to strike would have been more appropriate than
an objection. Such puristic analysis, though not without merit, may
often be lost in the press of trial. A defendant's fight should
not hang on such subtle distinctions. The majority bolsters its argument
that defendant is not entitled to our review of this claim by pointing
out that he failed to request a cautionary instruction after the trial
justice had overruled his objection to the vouching testimony. This
again grinds too fine a point; as we have explained in other similar
circumstances, when such a request would be futile, as here, we have
refrained from requiring such a request from a criminal defendant before
according him or her access to meaningful appellate review.
See, e.g., State v. Mead, 544 A.2d 1146, 1150
(R.I. 1988).

In Haslam we vacated the defendant's
Superior Court conviction on various charges of child molestation in
part because the trial justice had permitted the testimony of a
sexual-abuse-recovery counselor (Swink) who treated the victim following
the alleged abuse. The testimony elicited repeatedly alluded to the fact
that Swink's primary area of practice was sexual-abuse recovery.
Haslam, 663 A.2d at 905. Also, the state elicited
over defense objection that sexual-abuse recovery was indeed the purpose
of the victim's meetings with Swink. Id. at
904-05. We held that testimony to be prejudicial to the defendant; Swink
had neither firsthand knowledge of the alleged molestation nor any
opportunity to Witness any interaction between the accused and the
victim. Id. at 906. The repeated references to
sexual-abuse recovery, coupled with the testimony that counseling
sessions between Swink and the victim had been ongoing for more than two
years, could have led the jury logically to conclude that Swink
obviously believed the victim's allegation to be true.
Id. Finally, we concluded that owing to the fact
that the credibility, or lack thereof, was a crucial or even a paramount
issue in the case, the allowance of Swink's vouching testimony was
reversible error. Id. at 906; see
also State v. Miller, 679 A.2d 867, 873 (R.I. 1996) (finding
prejudicial error in a situation in which police officer's
vouching testimony was admitted in case where "the quantity and
the quality of the evidence were closely balanced and credibility was of
paramount importance").

Applying the clear principles of Haslam to the
instant appeal compels a like result. In neither case did the vouching
nature of the testimony evolve into an outright endorsement of the
victim's veracity, but in both cases the effect was the same. Here
as in Haslam the bolstering testimony came from a
Witness who would ordinarily enjoy a position of trust in the community.
Here as in Haslam the jury could have been led to
believe that the witness somehow possessed special talents for the
discernment of truth: (1) in Haslam the
prejudicial testimony came from a professionally trained expert who
dealt primarily with victims of sexual abuse and, therefore, would be
proficient in determining whether someone had suffered from such trauma,
(2) in the case at bar Pastor Janikuak testified that she had particular
professional sensitivity to sexual abuse and training in assessing
truth. Finally, in this case as in Haslam the
veracity of the complaining witness was of paramount importance.
Emily's word stood alone as the state's only evidence since
there was no forensic evidence and, as is generally the case, no
witnesses to, or in corroboration of, the child's claims.

Conclusion

The pretrial and trial errors discussed above undermine confidence
that the defendant's conviction was the product of a
constitutionally fair process. The constitutional protections afforded
under the fight of confrontation embody deeply entrenched beliefs that
are central to our system of jurisprudence. Ours is, after all, an
accusatorial system, not an inquisitorial one. These constitutional
imperatives reflect our societal belief in procedures that ensure one
who is accused of a crime, however heinous, a fair trial and a
reasonable opportunity to defend against the prosecution's
evidence. The defendant received neither. For these reasons I
respectfully dissent.

Justice Goldberg did not participate.

March 13, 1998

Supreme Court

No. 95-648-C.A.

(K1/93-598A)

State :

v.

Danny L. Brown. :

NOTICE: This opinion is subject to formal
revision before publication in the Rhode Island Reporter. Readers are
requested to notify the Technical Secretary, Supreme Court of Rhode
Island, 250 Benefit Street, Providence, Rhode Island 02903, at Tel.
222-6588 of any typographical or other formal errors in order that
corrections may be made before the opinion is published.

FOOTNOTES

1 The name of the complaining witness
and that of her mother have been changed to protect their
identities.

2 The defendant testified that the couple
again separated in October of 1991 and that he began a romantic
relationship with a friend of Doe's on or about April 12, 1992.
According to defendant, within a couple weeks thereafter he told Doe he
wanted to file for a second divorce because he "didn't love
her" and was in love with Doe's friend. However, Doe
apparently was not served with any such divorce complaint until some
time on or about July 10, 1992.

3 The Sixth Amendment to the United
States Constitution guarantees that "the accused shall enjoy the
right * * * to be confronted with the witnesses against
him."

4 Article 1, section 10, of our state
constitution similarly provides that "[i]n all criminal
prosecutions, accused persons shall enjoy the right * * *
to be confronted with the witnesses against them."

5 The hearing justice did order the state
to produce other medical information pertaining to complainant,
including information relating to any psychiatric consultations she may
have had during a ten-year period. Thus the hearing justice may have
determined that, given the confidential nature of the medical
information requested, it would be best to proceed in stages in the hope
that discovery of the psychiatric records would help to narrow or to
obviate the need for irrelevant medical information about other
treatments and examinations unrelated to complainant's alleged
sexual abuse.

6 The dissent contends that
"providing such information after or immediately before trial had
begun would have been useless." We disagree. This is the same
procedure that the court endorsed in State v. Kholi,
672 A.2d 429, 436-37 (R.I. 1996) (trial court's order for
the state to produce medical records and its subsequent in-camera review
are appropriate when a defendant invokes confrontation-clause right to
certain records relating to a witness immediately prior to the
defendant's cross-examination of that witness); see
also State v. Kelly, 554 A.2d 632, 636 (R.I. 1989) (Department of
Children, Youth, and Families records).

7 Rule 17(c) of the Superior
Court's Rules of Criminal Procedure provides in pertinent part as
follows:

"The court may direct that books, papers, documents or objects
designated in the subpoena be produced before the court at a time prior
to the trial or prior to the time when they are to be offered in
evidence and may upon their production permit the books, papers,
documents or objects or portions thereof to be inspected by the parties
and their attorneys."

8 Under this state's
Confidentiality of Health Care Information Act, the information
requested in the case at bar - - the identity of the physicians who
may have treated or examined complainant during the requested period
- - clearly falls within the definition of "confidential
health care information" because the request was designed to
obtain "information relating to [this] patient's health care
history, diagnosis, condition, treatment or evaluation obtained from a
health care provider who [may] ha[ve] treated" her.
See G.L. 1956 §5-37.3-3(3). As such, the
requested information, even though it may be subpoenaed pursuant to
valid legal process, is presumptively private, confidential, and
privileged. See Washburn v. Rite Aid Corp,, 695
A.2d 495, 500 (R.I. 1997) (finding that "mere receipt of a valid
subpoena does not negate [the] privilege" against unauthorized
disclosure of medical records and does not give a party "carte
blanche to publish the information willy-nilly to third
parties").

9 The dissent states that the
law-of-the-case doctrine may have barred any later effort by defendant
to revisit his previously denied discovery request. However, the
law-of-the-case doctrine is a "flexible rule" such that
"[a] clear alteration of the circumstances since the first
decision of the question may also make it advisable that the second
justice should be permitted to pass upon it in the light of the changed
conditions." Payne v. Superior Court, 78
R.I. 177, 184, 185, 80 A.2d 159, 163 (1951). Here, given the provisional
nature of the hearing justice's ruling, the law-of-the-case
doctrine would not have been applicable in any event. If defendant had
properly raised this confrontation-clause issue in the appropriate forum
(trial) and via an appropriately drawn request (that is, one that was
not overbroad) while indicating to the court the results of the earlier
court-ordered discovery (names and addresses of those psychiatrists,
psychologists, therapists or social workers who provided treatment to
complainant), these changed circumstances would have allowed the trial
justice to consider defendant's request for confrontation-clause
material when it was ripe to do so.

"Defendant
Counsel: * * * Did you have a church built in
Smithfield?

"Janikuak: Yes, I did.

"Defense Counsel: When was that church
built?

"Janikuak: 1991.

"Defense Counsel: By whom was that church
built?

"Janikuak: By the people of the church
and outside contractors.

* * *

"Defense Counsel: Was there a gentleman
by the name of Al Brown who acted in building that church?

"Janikuak: No, he didn't, not. No
way.

"Defense Counsel: Al Brown had no contact
with that church.

"The Court: You made a statement.
Rephrase the question.

"Prosecutor: Objection. May we approach
the bench, your Honor?

"Defense Counsel: May we approach, your
Honor?

(The following occurred at side bar out of hearing of the jury.)

"Defense Counsel: I'm going to
establish that Danny Brown is a relative of Al Brown.

"The Court: So what?

"Defense Counsel: Al Brown did the
backhoe. There were problems. An action was file don behalf of Al Brown,
which I have a certified copy of in my hands.

"The Court: So?

"The Defense Counsel: Danny Brown, my
client, was the party who was instrumental in putting the people
together to build that church.

"The Court: So?

"Defense Counsel: It goes to her motive.
It goes to her credibility as a witness in this particular case. I also
cite State v. Privitera, 476 A.2d 605, RI [sic]
1984, in which - - Pendency of civil litigation between witness and
party against whom he testifies is relevant to bias.

"The Court: I agree. That's
good.

"Defense Counsel: I'm seeking to
establish for the purpose of her showing lack of credibility.

"The Court: Does your client have an
action against this woman?

"Defense Counsel: No, he does not,
Judge.

"The Court: Okay, That's it.
Let's go.

(End of side bar conference)

"The Court: Next question please.

"Defense Counsel: Yes, Judge. No further
questions."

11 The bias
circumstances in the case at bar do not rise to the level of those in
Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39
L.Ed.2d 347 (1974), and therefore do not merit the same level of
constitutional protection that was afforded there. In
Davis the prosecution's witness had a direct
and immediate penal interest in testifying against the defendant to
protect his probation status as a juvenile offender. Like
Davis other opinions of the United States Supreme
Court indicate that the bias inquiry on cross-examination must bear a
direct relationship to the witness's personal penal interest in
the case in order to be constitutionally required.
See, e.g.,
Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct.
1431, 89 L.Ed.2d 674 (1986) (finding confrontation-clause violation when
the trial judge excluded evidence that the witness had agreed to speak
to prosecutors about the crime in question in exchange for dismissal of
a criminal charge against him). In addition, unlike
Davis, where the witness was an alleged eyewitness
to the actual criminal acts, the witness's testimony here (as we
show below) was not "'crucial link in the proof
* * * of [defendant's] act'."
Davis, 415 U.S. at 317, 94 S.Ct. at 1111, 39
L.Ed.2d at 354. Moreover, unlike Davis, the bias
inquiry here stems merely from a nonimmediate familial relationship
between defendant and a third party of whom the witness testified she
was unaware that he had been a contractor at her church.

12 Defense counsel
contended as much before the trial justice: "Once [the mother]
became aware of allegations of abuse, certainly if [she] did not
question the veracity of the statements being made by the minor child,
[she] certainly would want to protect two other children that would be
in the presence of [defendant]. * * * Certainly one [who]
would become aware as to a child having been subject to abuse would want
to make sure that [her] other children were not subject to the same
abuse."

13

"Prosecutor:
And, what happened at that meeting?

"Defense Counsel: Objection.

"The Court: Grounds?

"Defense Counsel: Your Honor, if there is
going to be discussion relative to what [complainant] may have said to
her [Janikuak] * * *

"The Court: Let's take one question
at a time. What's the grounds?

"Defense Counsel: It would be that I
believe hearsay testimony would be elicited.

"The Court: That question is what
happened at that meeting. Now, [if] hearsay comes in
subsequent to that answer, you can object to it then, not before. I
don't want to start it now. Go ahead, Overruled.

"Defense Counsel: Do you recall the
question?

"The Court: The question is:
'What's [sic] happened at that
meeting?'

"Janikuak: What happened at that meeting
is she came in to apologize for her behavior, and I said, 'Well,
it seems, I'm really concerned because your behavior seems to be
escalating and getting worse.'

"The Court: You can't say what she
said to you.

"Janikuak: Pardon me?

"The Court: You cannot say what she said
to you.

"Prosecutor: Well, if the Court please, I
would ask for it. My questions would attempt to elicit the meeting
without offering any statements for the truth of the matter asserted but
just to explain the meeting.

"Defense Counsel: Your Honor,
I renew my objection based on the fact that
hearsaytestimony is going to be
elicited.

"The Court: I understand your
apprehension, and if it's elicited, I will deal with it
appropriately.

"Defense Counsel: Yes, your Honor.

"Prosecutor: Did you talk back and forth
with her?

"Janikuak: Yes, we did.

"Prosecutor: Okay. Could you describe
what her demeanor was like?

"Janikuak: At periods of time she was
withdrawn, other periods very angry and antagonistic, just like, leave
me alone, you know, like I don't want to talk but yet I'm
here, just an up and down behavior.

"Prosecutor: Without telling us her
words, did she inform you of any incidents that she had been involved
in?

"Prosecutor: Again, without giving us any
specifics, did you ask her for more specifics or did she give you more
specifics?

"Janikuak: At that point she was so upset
and so distraught I said, '[Emily] you're manifesting that
behavior again and I don't understand it,' and she proceeded
to lash out at me and say, 'Well, if you [sic]
had happened to you what happened to me, you'd be in the
same predicament,' or, 'you would feel the same
way.'

"Defense Counsel: Objection, your
Honor.

"The Court: There's no
question.

"Defense Counsel:Well,
again, this is hearsay, your Honor.

"The Court: There's no question.
You didn't object to it. You may proceed."(Emphasis
added.)

14

"Prosecutor:
And how did you go about doing that?

"Janikuak: I just said to her, "Do
you realize the seriousness of your allegations?

"Prosecutor: Did you then take any
action?

"Janikuak: Uh-huh. I told
her that she needed to, you know continue to look at thisaspect of the truthfulness of what she was saving,
and that I would confront Danny Brown with what she said.

"Prosecutor: Did you, in fact, do
that?

"Janikuak: Yes, I did.

"Prosecutor: Okay. And how did you go
about doing that?

"Janikuak: I called Danny Brown on the
telephone. I told him that I had a very serious matter that I had to
discuss with him, and would he come into my office.

"Prosecutor: Did he?

"Janikuak: Yes, he did.

"Prosecutor: Could you tell us the
substance of that discussion?

"Janikuak: I related to him the
allegations that [complainant] had made concerning him, and he denied
it. He denied the allegations.

"Prosecutor: When that happened, what did
you do next?

"Janikuak:I told him
seeing that there is a conflict here, she's saving yes, you did,
andhe's saving no, he didn't, I said
'You need to go back
to [complainant] and discuss thiswith her, and. see what happens at that
point.'

"Prosecutor: Did you also discuss it with
[complainant] again?

"Janikuak: Yes, I did.

"Prosecutor: Okay. And what happened at
your next meeting?

"Janikuak: I said to [complainant] that
Danny Brown had denied her allegations, and she was completely
distraught at that point.

"Prosecutor: Can you explain what you
mean by that?

"Janikuak: She was out of control. I
mean, when someone gets upset, it's like when you called someone a
liar and maybe, they don't understand it - - I don't
want to paint words here, but she was out of control. She said,
'He's lying.' I said,
'Well, somebody's lying
here.'

"Prosecutor: Did you make any suggestions
then to Danny Brown?

"Janikuak: I said, 'There's
something radically wrong here,' because I still
was, you know, couldn't see, one was saying yes and one was saying
no. I suggested that they see a psychologist." (Emphases
added.)

15 The state's
brief on this issue, as well as the other issues raised by defendant,
reveals an apparent dearth of legal precedent to support its position.
In fact the state fails to produce any authority whatsoever that
arguably supports its position, nor does it argue that the instant
facts present an issue of first impression.

16 I acknowledge the
majority's opinion that the law-of-the-case doctrine would not
apply to these circumstances. I respectfully disagree. The majority
suggests that the circumstances had changed sufficiently to warrant a
revisitation of the issue as the law-of-the-case rule is a
"flexible" one. I do not believe,
however, that the mere passage of time (nine months in this case,
which common experience teaches is a relatively short period in modem
litigation practice), without more, amounts to the "clear
alteration of the circumstances" upon which the majority relies,
such that a reasonably prudent attorney would feel justified in
repetitioning the court. Further, as we point out below, making such a
request at trial or on the eve of trial would have required a
significant postponement of the case. Such information would have been
useless within the framework of the trial itself.

17 Although the
majority may debate the worthiness of a particular discovery request
based on the resemblance of a defendant's demeanor to a bulldog or
a potted plant (majority op., part IC), we believe the better reasoned
analysis considers the appropriateness of a discovery request in light
of the facts and circumstances of each particular case. The question of
whether a request falls within some heretofore unannounced litigation
timeline obfuscates the issue and avoids the constitutionally compelled
inquiry, to wit, whether a defendant is entitled to or not entitled to
the information sought.

18 Perhaps the
majority protests too much. The confidentiality argument raised for the
first time by the majority is merely a distraction. Neither the state
nor defendant claimed that such information would be entitled to the
cloak of confidentiality.

19Calci
v. Brown, 95 R.I. 216, 220, 186 A.2d 234, 236 (1962), this court
held that a trial court may not properly require offers of proof
concerning inquiries made for purposes of cross-examination except in
extraordinary circumstances. The offer of proof at issue here was more
than adequate to indicate that the subject matter was germane to the
issue of bias. See Statev. Doctor,
690 A.2d 321, 331-32 (R.I. 1997) (Weisberger, C.J.,
concurring).